P L D 2009 Peshawar 83 (PLP)

SHAH JEHAN KHAN YOUSAFZAI, J.

The Revision Petition is directed against the concurrent findings of two courts below whereby the petitioners were non-suited for grant of decree for redemption.

2. Facts in brief are that petitioners/plaintiffs filed a suit for possession through redemption of the land mortgaged to the predecessor of respondents in the year, 1886-87 for a sum of Rs.278/50. It is averred in the plaint that the disputed property was originally owned by one Mst. Mansoba who mortgaged it to the predecessor-in-interest of plaintiffs-petitioners and defendants-respondents. The petitioners-plaintiffs purchased the title of the suit land through Mutation No.146 attested on 29-8-1997 from the successors of original owner/mortgagor Mst. Mansooba. After purchase, some of the petitioners-plaintiffs alienated some portion of the said purchased land already mortgaged to Nawab Khan, petitioner-plaintiff No.8 through Mutation No.155 attested on 20-3-1999. Claim of the plaintiffs is that since they have replaced actual mortgagor and the defendants-respondents are in possession of the land as mortgagees, therefore, they prayed for decree for possession through redemption. The suit was contested by the respondents-defendants through written statement and the trial Court framed five issues including the relief. After recording pro and contra evidence of the parties, the 'trial Court vide judgment and decree dated 27-9-2006 dismissed the suit of petitioners-plaintiffs which was also concurred by the Appellate Court through judgment and decree dated 10-7-2008.

3. I have heard the learned counsel- for the petitioners who contended with vehemence that since the petitioners have purchased the mortgage title through Mutation No.146 attested on 29-8-1997 which amounts to acknowledgement and the period of limitation would be counted from the date of attestation of mutation, noted above. The learned counsel relied upon Nawaz Ali Khan and others v. Nawabzada and others PLD 2003 SC 425; Durrani and others v. Hamidullah Khan and others 2007 SCMR 480; Baidullah Jan and others v. Hawas Khan and others PLD 2002 Pesh. 92.

4. This is undisputed fact that original full owner of the suit land Mst. Mansoba mortgaged the suit-land to the defendants-respondents in the year, 1886-87 with possession. This is also not disputed that since creation of mortgage no rent or part of usufruct of the suit land was received by the mortgagor till institution of the suit. Suit for redemption is governed by Article 148 of the Limitation Act whereby suit for recovery of possession of immovable property by the mortgagor against the mortgagee for redemption would be sixty years commencing from the date of right to redeem or to recover possession. This is undisputed fact that the mortgagor failed to redeem the disputed land till 1946 and lapse of sixty years from the date of accrual of right of redemption. Suit by mortgagor beyond sixty years when there is no acknowledgement in the said period, the mortgagor shall be debarred to seek decree for possession through redemption. It is also an established principle of administration of justice in civil disputes that burden always lies upon the plaintiff to establish among other thing that the suit is well within time. If the plaintiffs fail to establish that the suit is within time, he cannot be granted decree being barred by time.

5. The petitioners-plaintiffs have purchased the title of mortgagor and in this way the land which was already mortgaged with them, become full owner instead of mortgagee. In the year, 1997 purchasing the title of original owner from her successors was already barred by time because after 1946 the original owner or her successors were barred to file a suit for redemption. The petitioners are vendees of the title have stepped into shoes of original owner and they have purchased the title of the mortgagor which could not be enforced through Court.

6. Section 28 of the Limitation Act whereby right of property would be extinguished in certain circumstances which reads as follows:-- "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished". The vires of section 28 and Article 144 of the Limitation Act whereunder on the basis of adverse possession for more than 12 years, no suit for possession could be entertained was declared repugnant to Injunction of Islam.

7. In the case of Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063, section 28 read with Article 144 of the Limitation Act, 1908 were declared repugnant to the Injunction of Islam and it was declared that after 31-8-1991 no decree for declaration on the basis of adverse possession or acquiring prescription could be entertained.

8. The judgments cited by the counsel for the petitioners were delivered in suits filed by mortgagee for a declaration of title acquired on prescription were non-suited because they had not obtained any decree before 31-8-1999.While striking down of section 28 of Limitation, 1908, it was observed as follows:--

9. The aforesaid passage is evident to show that the mortgagor would be barred to approach the Court for possession through redemption after lapse of sixty years but despite the said inability the mortgagor shall still be owner and if he succeeded in getting possession of the property of time-barred mortgage, his possession could not be disturbed on the ground that the opposite side had matured his title through adverse possession or prescription.

10. In the aforesaid judgment of 1991, section 28 read with Article 144 of the Limitation Act has been declared repugnant to the Injunctions of Islam but Article 148 whereunder no suit for redemption or to recover possession could be brought against mortgagee after sixty years from the date of accrual of right to redeem or recover possession. When a mortgage is created upon an immovable property and there is no time fixed for its, redemption, the mortgagor get the right to redeem from the very first day and if some other date or period is fixed for redemption then the limitation of sixty years shall run from that date or period.

11. In the said judgment PLD 2002 Peshawar 92, Single Bench of this Court has discussed in detail the effect of repeal of laws under section 6 of the General Clauses Act and a law which ceased to have effect, it was observed that the expression ceased to have effect cannot be held synonymous with repeal as is envisaged by Article 264 of the Constitution and section 6 of the General Clauses Act, 1893. The conclusion drawn is as under:-- "Section 28 of the Limitation Act was declared repugnant to the Injunctions of Islam by the Hon'ble Supreme Court in the case of Maqbool Ahmad v. Government of Pakistan 1991 S.CMR 2063 and according thereto it ceased to have effect after 31-8-1991'. If a suit instituted thereunder was decreed before the target date it was considered a transaction past and closed, but if not then it could not have been decreed thereafter. In the instant case though the suit was instituted on 22-7-1985 but it never culminated in a decree of the Court and by the time when it matured for being decreed section 28 no more adorned the Statute of Limitation, thus it could not have been and cannot be decreed."

12. In 2007 SCMR 480, the mortgagee was non-suited for declaration on the basis of prescription because no decree was obtained before 31-8-1991, the crucial date given by the Shariat Appellate Bench of the Supreme Court in case reported in 1991 SCMR 2063.

13. The petitioners claimed to have purchased the title of the original mortgagee from their successors' step into the shoes of mortgagor and since her right to redeem through Court was extinguished, therefore, they had also no right to approach the Court for E a decree of redemption or possession.

14. In view of the aforesaid discussion, I found that the two courts below have rightly non-suited the petitioners for grant of redemption decree. This Revision Petition is therefore, dismissed in limine. H.B.T./66/P Petition dismissed.